Clarion Housing Association Limited (202100601)

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REPORT

COMPLAINT 202100601

Clarion Housing Association Limited

7 December 2021


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of:

a.     The resident’s concerns relating to the heating system in her property before August 2020 and her concerns that her property may have been mis-sold by the landlord.

 

b.     The resident’s concerns regarding her heating system after August 2020, and her request that the landlord pay for a new system to be installed.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 39(e) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
  • The resident’s concerns relating to the heating system in her property before August 2020 and her concerns that her property may have been mis-sold by the landlord.
  1. Under Paragraph 39(e) of the Housing Ombudsman Scheme, we will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. Therefore, whilst the historical incidents provide contextual background to the current complaint, this assessment focuses on events from six months prior to the formal complaint being made in February 2021.
  2. The Ombudsman notes that the resident has reported problems with the heating system to the landlord since 2010. Landlords are not expected to keep detailed records indefinitely and it would be reasonable for the landlord not to have much information about repair issues reported several years ago. It is understood that the resident has her own records dating back to 2010 but this would not be sufficient in itself for the Ombudsman to investigate because we are impartial, and we need to see evidence from both sides
  3. It is noted that part of the resident’s complaint was that she believes that her house was mis sold as affordable green housing. This Service would not be able to make an adjudication in respect of this due to the time that has passed but also feel that this matter is better suited for a court to decide. Paragraph 39(i) of the Housing Ombudsman Scheme says that The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”. This is because the sale of a house is a legal process which involves solicitors as well as the landlord and the resident and it is outside of the Ombudsman’s role to investigate legal disputes.
  4. The resident may like to consult LEASE at Home – The Leasehold Advisory Service (lease-advice.org) to consider further options on this aspect of her complaint.

Background and summary of events

Background

  1. The resident is a leaseholder in a shared ownership scheme managed by the landlord.
  2. The house was built in 2009 and the resident moved in in December 2009.
  3. The resident has been represented in this complaint by a relative. The resident and her representative have both corresponded with the landlord and the Ombudsman about the complaint. For ease of reference, both the resident and her representative will be referred to as “the resident” throughout this report.

Summary of events

  1. The resident made a complaint to the landlord on 22 February 2021 about the reliability and running costs of her heating system. She mentioned her heating system has been unreliable and expensive to run since she moved in, in 2009. [p4.1]
  2. A visit from the heating company took place on 26 February 2021 to investigate the resident’s reports of excessive electricity consumption. The engineer replaced the expansion vessel and reduced the temperature at which the system switched on. He also commented that the airflow was too low to enable the system to run properly which means that it runs almost constantly to keep up with demand. [p1.168]
  3. A further visit took place on 9 April 2021 following a report of no hot water. The engineer found the water and radiator pressure low. The engineer reiterated the previous conclusion that the system could not cope with the demand. [p1.169]
  4. The resident emailed the landlord on 26 February 2021 saying that she had had a visit from an engineer to repair the heating system on 22 February 2021, who told her that the system was incorrectly installed. She complained that she had been mis sold the property as it was marketed as affordable green housing. [p4.1]
  5. This Service left a voicemail for the resident on 11 March 2021 advising that the landlord says that the heating system had an estimated lifespan of 10-15 years and that, as it was now 12 years old, may have needed to be replaced and that, as a shared owner, the resident would be responsible for this. [p4.1]
  6. The landlord responded to the stage one complaint on 15 March 2021 declining to uphold the resident’s complaint on the grounds listed in the above paragraph. [p1.37]
  7. The resident emailed the landlord rejecting the stage one complaint response and repeated her request for the landlord to pay for a new heating system on 18 March 2021. [p5.1]
  8. There was no further contact between the resident and the landlord until 29 April 2021 when the resident called the landlord for a response and was told that a reply should be sent within 10 working days but it could be longer. [p5.1]
  9. The landlord emailed the resident on 11 May 2021 advising that the complaint has now been escalated to peer review (stage two) [p5.1]
  10. The current landlord did not own the property when the resident moved in. The resident sent an email from 23 August 2010 from the landlord at the time advising that it was chasing a response from the developer about the resident’s high electricity bills. [p1.5]
  11. The landlord called the resident on 19 May 2021 advising that it had no evidence that the heating system was incorrectly installed. [p5.1]
  12. The landlord emailed the resident later on 19 May 2021 to advise that the information previously supplied could not be regarded as evidence of incorrect installation and that the financial responsibility for rectifying the problems rested with the resident as a shared owner. [p5.1]
  13. The landlord’s peer review (stage two) complaint response was issued on 3 June 2021. The appeal was rejected because no evidence was provided that indicated that any faults had been reported either during the warranty or defect handover period after the property was built. The landlord undertook to reassess the resident’s request if evidence came to light that proved that a fault was reported at the time or a statement that the system was incorrectly installed or otherwise not fit for purpose. The landlord offered £25 compensation in recognition of the time taken to complete the investigation. [p1.39-41]
  14. The resident declined the compensation referred to in the above paragraph on 21 June 2021. [p5.1]
  15. The resident forwarded the landlord copies of emails between her and it from 2010 and 2011 [p1.138-153] as well as copies of engineer’s service reports for the heating system arising from visits to the resident’s property between 12 August 2014 and 31 July 2019 [p1.155-165]
  16. The resident’s heating system underwent a full service on 14 October 2020 and the engineer identified the need to replace and regas the fridge pipe for which a follow on job needed to be booked. [p1.167]

Assessment and findings

Policies and processes

  1. The resident’s lease makes no specific reference to which party is responsible for repairs to heating systems but the landlord’s repairs policy document signposts to its website for responsibilities for repairs to leasehold properties. The website confirmed that repairs to central heating, boilers and radiators are the responsibility of the leaseholder. This is in line with industry best practice as leaseholders, including shared ownership leaseholders, are generally responsible for installations such as heating systems which serve only their own property) However, faults reported during the building warranty or defect handover period are not the responsibility of the leaseholder. The heating system manufacturer was liable for defects for the first year after the property was built but liability is unclear after that period has expired although the property was subject to a 10 year warranty after being built.

The landlord’s communication with the resident regarding her concerns about her heating system after August 2020, her belief that her property was mis sold and her request that it pay for a new system to be installed. – as above this needs to be rephrased as it is quite long, making it difficult to follow.

  1. The resident emailed the landlord on 2 March 2021, as a result of a visit to her property by a service engineer from the heating system manufacturer on 26 February 2021. The resident reiterated that she had been experiencing what she believed were excessively high electricity bills for the previous 12 years. She also supplied proof of this to the landlord in the form of recent electricity bills.
  2. It is not possible for the Ombudsman to say how much the resident’s electricity bill should be as she states that she has had this problem since moving in meaning that we have no undisputed bills to compare her current ones with. Also, energy bills are heavily dependent on the layout of the property and the lifestyle and number of its occupants. An above average bill does not therefore necessarily mean that the heating system is faulty or was incorrectly installed.
  3. The landlord was advised that the heating system would be expected by the manufacturer to last for between 10 and 15 years and that as this system was 12 years old it may need replacing due to its age.
  4. The resident sent the landlord a copy of an email dated 23 August 2010 referring to a high electricity bill. The landlord advised the resident that the evidence presented did not prove that the heating system was incorrectly installed and that the resident would, under the shared ownership scheme be expected to pay for a new heating system to be installed.  
  5. The landlord did act appropriately in offering to reconsider the resident’s claim if she could provide evidence of incorrect installation or that the problem was raised with the landlord within the warranty period or the defect handover period.
  6. The peer review response issued on 3 June 2021 upheld the stage one response because the necessary evidence referred to in the above paragraph was not provided by the resident and can therefore be considered a reasonable decision.
  7. The resident emailed this Service on 26 November 2021 to advise us that she had engaged a green energy company to provide a quote for a new system and they concluded that the original system was unsuitable from the time it was installed. We are not able to comment on this information as the landlord has not has the opportunity to assess it. Our investigation remains focussed on issues that were reported to the landlord and which have been dealt with in its internal complaints process.
  8. The resident made reference to neighbours having similar problems with their heating systems. We acknowledge the resident’s comments about this but we can only investigate her complaint and we do not have evidence that other residents have reported similar defects to the landlord within the defects period after the properties were built. This Service is unable to contact the resident’s neighbours as suggested because we are impartial and are therefore unable to help one side or the other prove their case. The resident’s neighbours have also had the opportunity to make similar complaints to this Service but if they complain about events dating back to 2010 it is likely that we would be unable to investigate for the reasons already mentioned.

The handling of the resident’s complaint.

  1. The resident submitted a stage one complaint on 2 March 2021 The landlord responded on 15 March 2021, which is within its 10 working day commitment for a response.
  2. The resident replied to the stage one response on 18 March 2021 rejecting its findings but had received no reply by 29 April 2021 when the resident called the landlord for an update. The landlord told the resident that she should receive a response within 10 working days but did not open a peer review complaint until 11 May 2021. The landlord provided no explanation for this delay or an alternative timescale for complaint resolution. The Ombudsman finds service failure in respect of complaint handling and will order that the original offer of £25 compensation if not already paid be increased to £100.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman’s Scheme there was service failure in respect of the landlord’s communication with the resident regarding her concerns about her heating system after August 2020, and her request that it pay for a new system to be installed.

Reasons

  1. The landlord was correct in stating that maintenance of the heating system was the responsibility of the resident, in line with the lease.
  2. There was an unreasonable delay in communication between the resident rejecting the stage one complaint response and the landlord opening a peer review complaint. No explanation was given for the delay and neither was an alternative timetable for dispute resolution provided. The original compensation offer did not adequately reflect the time and trouble the resident went to and to put this right her landlord is ordered to increase this offer to £100 or pay an additional £75 if the original compensation offer has subsequently been accepted by the resident.

Orders

  1. If the original offer of £25 compensation had not been paid to the resident this should be increased to £100. This is for time and trouble taken by the resident.
  2. If the original offer has been paid then the landlord should pay the resident an additional £75 in compensation.
  3. The compensation is to be paid within four weeks of the receipt of the determination.

Recommendations

  1. The landlord is recommended to assess the new information regarding the suitability of the original heating system and review its original decision in this light. The landlord should then write to the resident to explain its position.